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Pro-Choice Mississippi v. Fordice

August 13, 1998

PRO-CHOICE MISSISSIPPI, ON BEHALF OF ITSELF AND ITS MEMBERS, JOSEPH BOOKER, M.D., TOM TVEDTEN, M.D. AND NEW WOMAN MEDICAL CENTER
v.
KIRK FORDICE, GOVERNOR OF THE STATE OF MISSISSIPPI AND HIS EMPLOYEES, AGENTS AND SUCCESSORS; MIKE MOORE, ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI AND HIS EMPLOYEES, AGENTS AND SUCCESSORS; AND MISSISSIPPI STATE DEPARTMENT OF HEALTH



The opinion of the court was delivered by: Sullivan, Presiding Justice

Pro-Choice of Mississippi, et al v. Fordice, et al, 95-CA-00960-SCT, __ So. 2d __

DATE OF JUDGMENT: 08/30/95

TRIAL JUDGE: HON. PAT WISE

COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION AFFIRMED - 08/13/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

¶1. The original opinions in this case are withdrawn and these opinions are substituted therefor.

PART ONE

BACKGROUND--FEDERAL LITIGATION

¶2. On June 27, 1986, Helen Barnes, M.D., Henry Thomas Gunter, M.D., Mississippi Women's Medical Clinic, New Woman Medical Center (Jackson) and New Woman Medical Center (Bay St. Louis) challenged the facial constitutionality of the parental consent abortion statutes, Miss. §§ Code Ann. 41-41-51 through 41-41-63. They sued Bill Allain, then Governor of Mississippi; Edwin Pittman, then Attorney General of Mississippi; the State Board of Medical Licensure, including its members; and the Justices of the Mississippi Supreme Court. The challenge was tried before Judge Henry T. Wingate of the United States Federal District Court for the Southern District of Mississippi. Judge Wingate granted a preliminary injunction enjoining enforcement of the laws until the Mississippi Supreme Court could promulgate rules on parental consent waiver proceedings. The district court also stayed the proceedings for four years, awaiting the outcome of various United States Supreme Court rulings on abortion. Finally, in March 1992, judge Wingate held that M.R.A.P. 48 (governing appeals from consent waiver proceedings) was unduly restrictive and impaired a minor's access to an abortion. Judge Wingate denied the State's motion to lift the preliminary injunction on enforcement of the challenged statutes. The State appealed to the Fifth Circuit Court of Appeals, who found that the abortion statutes were constitutional in Barnes v. Mississippi , 992 F.2d 1335 (5 th Cir. 1993), cert. denied , 510 U.S. 976 (1993) ( Barnes II ).

¶3. Citing Bellotti v. Baird , 443 U.S. 622 (1979) , and Hodgson v. Minnesota , 497 U.S. 417 (1990) , the Fifth Circuit found that a two-parent consent statute with an adequate judicial bypass met federal constitutional muster. Relying on the plurality opinion in Bellotti , the Court concluded that "if the statute had contained an adequate judicial bypass the four members of the plurality stood ready to uphold it. A fifth, Justice White, was prepared to uphold the statute in Bellotti even without a judicial bypass." Barnes II , 992 F.2d at D.K. In Hodgson , five Justices "viewed Bellotti as settling the question in favor of the constitutionality of a two-parent consent/judicial bypass statute." Id. at 1339. The Barnes II Court concluded that Mississippi's two-parent consent law did not place an "undue burden" on a minor's right to seek an abortion. Id. at 1341.

¶4. The plaintiffs claimed that, even though the statutory judicial bypass might meet constitutional standards, Uniform Chancery Court Rule 10.01, which implements the statute, does not. The Court felt that the contention was hyper-technical and that U.C.C.R. 10.01 was not violative of the Constitution. Barnes II , 992 F.2d at 1342.

¶5. On May 21, 1991, Mississippi Women's Medical Clinic and New Woman Medical Center, joined by Joseph Booker, M.D., Helen Barnes, M.D., and Joseph Mitchell, M.D., filed suit against Attorney General Mike Moore in the United States District for the Southern District of Mississippi to enjoin enforcement of the Informed Consent Act, alleging facial violations of both the United States and Mississippi Constitutions. The district court, on August 30, two days before the act was to become effective, granted an injunction suspending the effective date of enforcement. Barnes v. Moore , 970 F.2d 12, 13 (5 th Cir. 1992) ( Barnes I ).

¶6. While the appeal was pending, the United States Supreme Court handed down Planned Parenthood of Southeastern Pennsylvania v. Casey , 505 U.S. 833 (1992). The Fifth Circuit determined that Mississippi's laws were similar to the Pennsylvania laws which the United States Supreme Court ruled facially constitutional in Casey. Barnes I , 970 F.2d at 14-15. Applying the undue burden standard announced in Casey , the Fifth Circuit determined that the differences between the Mississippi and Pennsylvania laws were not sufficient to render Mississippi's laws facially unconstitutional. Id. at 15.

STATEMENT OF THE CASE AND FACTS

¶7. After the facial constitutional challenges in federal court failed, a new group of plaintiffs (hereinafter Plaintiffs) filed a complaint on February 17, 1994, in the Hinds County Chancery Court, contending that certain Mississippi abortion laws violate the Mississippi Constitution. The original plaintiffs in this proceeding were Pro-Choice Mississippi, Joseph Booker, M.D., Tom Tvedten, M.D., Mississippi Women's Medical Clinic, and New Woman Medical Center. Mississippi Women's Medical Clinic was voluntarily dismissed from the proceedings.

¶8. Pro-Choice is a coalition of individuals and organizations committed to the preservation of reproductive rights for all Mississippians. Its member organizations include Planned Parenthood of Mississippi, League of Women Voters of Mississippi, the Mississippi Chapter of the National Organization for Women, and the American Civil Liberties Union of Mississippi.

¶9. Joseph Booker, M.D., is a physician licensed to practice medicine in Mississippi and California, specializing in gynecology. He completed a residency in obstetrics/gynecology at Kaiser Foundation Hospital/Martin Luther King Hospital in Los Angeles, California in 1978, and is currently a member of the Mississippi State Medical Association, the Coast County Medical Association, and the American Medical Association. As the medical director of Gulf Coast Women's Clinic in Gulfport, Dr. Booker asserts his own interests and the interests of his patients, whom he alleges are irreparably harmed by the challenged statutory scheme.

¶10. Tom Tvedten, M.D., is a physician licensed to practice medicine in Arkansas and Mississippi, and temporarily licensed to practice in Alaska. He never completed an American Medical Association-approved residency in obstetrics/gynecology. Dr. Tvedten would like to provide abortion services at the New Woman Medical Center in Jackson but for the challenged licensing restriction.

¶11. New Woman Medical Center in Jackson, Mississippi provides a wide range of health care, including abortions. New Woman has faced great difficulties in recruiting physicians to perform abortions. New Woman asserts its own interests and the interests of its patients.

¶12. The defendants are Kirk Fordice, Governor of Mississippi, Mike Moore, Attorney General of Mississippi, and the Mississippi State Department of Health. On May 15, 1996, an amicus curiae brief was filed supporting the State's position. The amici include Ronnie Musgrove, Lieutenant Governor of Mississippi, Eric Clark, Mississippi Secretary of State, and various members of the Mississippi Legislature.

¶13. Specifically, Plaintiffs argue that the following are unconstitutional: Miss. Code Ann. § 41-41-31 et seq. (1993) (requiring a twenty-four hour waiting period after state-mandated consultation on information pertaining to abortion and pregnancy before a woman may have an §§ abortion); Miss. Code Ann. 41-41-51 through 41-41-63 (1993), Miss. R. App. P. 48, and U.C.C.R. 10.01 (requiring minors, with a limited exception, to obtain consent of both parents prior to having an abortion); and Rules and Regulations for the Operation of Ambulatory Surgical Facilities and Abortion Facilities § 102.19 (requiring a physician to have completed an American Medical Association approved residency in obstetrics and gynecology before performing abortions at a licensed abortion clinic).

¶14. Plaintiffs sought both declaratory and permanent injunctive relief on the grounds that each of the restrictions violates rights guaranteed by Article III, §§ 6, 14, and 32 of the Mississippi Constitution of 1890, including the right to privacy, the right of bodily integrity, the right to make medical decisions free from governmental interference, freedom of conscience, the right to due process of law, and the right to safety. Additionally, Plaintiffs allege that the two-parent consent law and the mandatory delay/State-mandated information law violate the right to free speech as guaranteed by Article III, § 13, and the guarantee against vague punitive laws provided for in Article III, § 14. Plaintiffs also assert that the licensing restriction violates the state constitutional due process guarantee to equal protection of the law and against arbitrary and irrational laws provided for in Article III, §§ 32 and 14 of the Mississippi Constitution.

¶15. Both parties filed motions for summary judgment, and the State asserted the affirmative defenses of lack of standing, lack of jurisdiction, improper joinder, and res judicata. On August 30, 1995, Chancellor Patricia Wise granted the State's motion for summary judgment, finding that the Mississippi Constitution contains a specific right to abortion but that the statutes were constitutional.

STATEMENT OF THE LAW

Standard of Review

¶16. This Court will utilize the following standard of review: The standard for reviewing the granting or the denying of summary judgment is the same standard as is employed by the trial court under Rule 56(c). This Court conducts de novo review of orders granting or denying summary judgment and looks at all the evidentiary matters before it--admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant would be given the benefit of the doubt.

Aetna Casualty and Surety Co. v. Berry , 669 So.2d 56, 70 (Miss. 1996) ( quoting Mantachie Nat. Gas v. Miss. Valley Gas Co. , 594 So.2d 1170, 1172 (Miss.1992)).

I.

DID THE CHANCELLOR CORRECTLY DETERMINE THAT MISSISSIPPI'S CONSTITUTION PROVIDES A RIGHT TO ABORTION?

¶17. The State contends that the Mississippi Constitution does not protect a right to abortion, because the framers of the Constitution did not intend to create a right to abortion. They point out that abortion was illegal at the time the Mississippi Constitution of 1890 was drafted, so the framers would not have found it necessary to proscribe a right that did not exist. Alternatively, the State argues that even if abortion had been legal at the time the Constitution was drafted, merely because abortion was legal in 1890 does not, ipso facto , determine that a right to abortion is actually protected. The State also asserts that since the Constitution does not grant a specific right to abortion, the judiciary may not create one.

A. Illegality Argument

¶18. Citing the Revised Code of 1880, the State contends that at the time the Constitution was drafted, abortion was illegal in Mississippi. Every person who shall administer to any woman pregnant with a quick child , any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by a physician to be necessary for such purpose, shall be deemed guilty of manslaughter.

Miss. Code 1880, Sec. 2884 (emphasis added). The State posits that the same basic provision was brought forward, pursuant to § 274 of the Constitution of 1890, in § 1157 of the Mississippi § Code of 1892. They argue that Miss. Code Ann. 97-3-3 (1994), which makes a person criminally liable for performing an abortion, unless (a) necessary to preserve the mother's life, or (b) when the pregnancy was caused by rape, announces Mississippi's policy that abortion is not a protected right but is criminally sanctioned in many cases. But see Spears v. State , 278 So.2d 443 (Miss. 1973) (holding that the limited exceptions in subsections 1(a) and (b) of what is now § Miss. Code Ann. 97-3-3 (1994) make the statute unconstitutional). The State further asserts that this Court has sanctioned criminal action against doctors performing abortions. See McCaskill v. State , 227 So.2d 847 (Miss. 1969); Mississippi State Board of Health v. Johnson , 197 Miss. 417, 19 So.2d 445 (1944) (abortion illegally administered because woman's life not endangered); Smith v. State , 112 Miss. 802, 73 So. 793 (1917) (doctor criminally charged with attempting to abort unborn quick child) ( overruled on other grounds by Ladnier v. State , 155 Miss. 348, 351, 124 So. 432, 432 (1929)). Citing Miller v. State , 636 So.2d 391 (Miss. 1994), the State concludes that the right to privacy does not protect an act otherwise prohibited by state law. See Miller , 636 So.2d at 394 ("[N]o right of privacy attaches to sexual acts committed with children, who have been illegally supplied with alcohol.").

¶19. We are not required to metaphysically enter the minds of the Constitution's framers in order to make an interpretation from their viewpoint. "It is a mistake to suppose that a constitution is to be interpreted only in the light of things as they existed at the time of its adoption." Stepp v. State , 202 Miss. 725, 729, 32 So.2d 447, 447 (Miss. 1947).

¶20. In asserting that the Mississippi Constitution does not protect the right to abortion under the privacy clause because the framers believed abortion illegal, the State fails to take into account some very important considerations. The monumental United States Supreme Court abortion case, Roe v. Wade , 410 U.S. 113 (1973) , discussed the legality of abortion from ancient Greece to the present day. "It is undisputed that at common law, abortion performed before 'quickening'-- the first recognizable movement of the fetus in utero, appearing usually from the 16 th to the 18 th week of pregnancy-- was not an indictable offense." Roe , 410 U.S. at 132. Thus, prior to 'quickening,' the fetus was considered part of the mother, and destroying a fetus did not fit within the definition of homicide. Id. at 134. Legislation began to replace common law in the area of abortion after the War Between the States. Id. at 139. "Most of these initial statutes dealt severely with abortion after quickening but were lenient with it before quickening." Id. In Roe the Court observed that "throughout the major portion of the 19 th century, abortion was viewed with less disfavor than under most American statutes currently in effect." Id. at 140. By the end of the 1950's, however, a large majority of jurisdictions banned abortion unless performed in order to preserve the mother's life. Id. at 139.

¶21. The State claims that abortion was illegal when the 1890 Constitution was drafted, citing § 2884 of the Revised Code of 1880, supra. However, the statute only rendered abortion illegal after the child was "quick." "Quick child" is defined as "pregnant with a child whose fetal movements are recognizable." Stedman's Medical Dictionary, 1304 (25 th ed. 1990), which occurs "sometime between 16 and 20 weeks after the onset of the last menstrual period...." F. Gary Cunningham, Williams Obstetrics 218 (17 th ed., 1985). Thus, at the time the Mississippi Constitution was adopted, abortion was legal until quickening, some four to five months into pregnancy. This Court in 1898, stated, "'An infant in the mother's womb, not being in rerum natura , is not considered as a person who can be killed within the description of murder....'" State v. Prude , 76 Miss. 543, 544, 24 So. 871, 871 (1898) (citations omitted). The State's illegality argument, that the framers intended to preclude protection of abortion, is without merit.

B. Argument on the Lack of an Explicit Guarantee

¶22. The State maintains that the Constitution must be interpreted in light of the circumstances surrounding the framers at the time of adoption. In determining whether "school" in section 208 of the Constitution refers to public schools or state owned and supported schools, this Court stated: The subject-matter in the mind of the Convention which adopted the Constitution must be ascertained from the words used in the Constitution, their context, the purpose sought to be accomplished, and the circumstances surrounding the Convention at the time the Constitution was framed and adopted...

State Teachers' College v. Morris , 165 Miss. 758, 765, 144 So. 374, 377 (1932). In determining whether a new abortion statute (defining the death of a mother resulting from an illegal abortion as murder) violated § 61 of the Constitution, this Court stated, "In construing constitutional provisions, the courts should look to the history of the times and examine the state of things in existence when the Constitutional provision in question was adopted, in order to ascertain the mischief sought to be remedied." McCaskill v. State , 227 So.2d 847, 850 (Miss. 1969) ( quoting Hart v. Backstrom , 148 Miss. 13, 113 So. 898 (1927)). The State contends that Mississippi's Constitution does not protect any right to abortion, because abortion is not mentioned in the Constitution.

¶23. The State argues that this Court will overstep the powers of the judiciary if we declare that Mississippi's Constitution provides for a right to abortion. They assert that reading rights into the Constitution that are not explicitly stated therein is equivalent to amending the Constitution. Only the people of Mississippi may amend the Constitution. Chevron U.S.A., Inc. v. State , 578 So.2d 644, 649 (Miss. 1991). In Chevron this Court stated that the Constitution: should not be changed, expanded or extended beyond its settled intent and meaning by any court to meet daily changes in the mores, manners, habits, or thinking of the people. The power to alter is the power to erase. Such changes should be made by those authorized so to do by the instrument itself-- the people.

Chevron , 578 So.2d at 649 ( quoting State v. Hall , 187 So.2d 861, 863 (Miss.1966)). The chancellor in Chevron solved a conflict concerning oil and gas mineral leases on sixteenth section land through equity, avoiding a constitutional provision. However, in Chevron , we were called upon to enforce an article explicitly written into our Constitution and overrule the chancellor's equitable decision. Regardless of the result, this Court must enforce the articles of the Constitution as written. The Mississippi Constitution does not explicitly deny or grant the right to an abortion. However, in In re Brown , 478 So.2d 1033 (Miss. 1985), this Court determined that the State Constitution provided for a right to privacy and the right to one's choices concerning one's body, despite the Constitution's silence on that issue.

¶24. The State argues that even if abortion was legal at the time that the Constitution of 1890 was written, the legality of abortion does not equate to a protected right. See Stepp v. State , 202 Miss. 725, 32 So.2d 447 (1947). In Stepp , the defendant was convicted of having intoxicating liquor in his possession. Stepp , 202 Miss. at 728, 32 So.2d at 447. Stepp argued that the statute under which he was convicted violated § 32 of the Mississippi Constitution of 1890. Id. at 729, 32 So.2d at 447. He asserted that at the time the Constitution was adopted, persons had a right to possess intoxicating liquor. Id. Stepp contended that legislation outlawing possession of an intoxicating liquor, enacted after passage of the Constitution, was unconstitutional since the right was inherently protected under § 32. Id. [A] constitution is intended to endure for a long time, and is interpreted in the light of developments which have appeared at the time of the interpretation, and may therefore include things and conditions which not only did not exist but were not contemplated when it was drafted, so long as the new developments are in their nature within the scope of the purposes and powers for the furtherance of which the constitution was established.

Id. Pointing out that laws prohibiting the sale of liquor had existed and been upheld for fifty or more years, this Court upheld the statute, finding that a law preventing personal use was reasonably related to the purpose of enforcing Mississippi statutes prohibiting the sale of liquor. Id. at 730-31, 32 So.2d at 448. We reaffirmed that decision on Stepp's suggestion of error. Stepp v. State , 202 Miss. 725, 731-36, 33 So.2d 307, 307-308 (1948). "The mere fact that possession was not expressly outlawed before the Constitution of 1890, and was not therein treated does not, ipso facto, make the possession of intoxicating liquors protected by Section 32 of the Constitution..." Id. at 732, 33 So.2d at 308.

¶25. Citing Stepp , the State argues that the mere legality of abortion in 1890 does not, ipso facto , effect a right to abortion. Furthermore, since the State has for a considerable time regulated aspects of abortion, § 32 does not preclude the State from continuing to regulate abortions if the laws reasonably uphold the State's legitimate interest in protecting the health of its citizens.

¶26. The State is correct in asserting that its police power extends to protecting the health of its citizens. However, the State's police power rises to an unconstitutional level when that power is exercised in an arbitrary manner. It is also true that merely because an act was legal at the time the Constitution was adopted, that act is not necessarily entitled to constitutional protection. However, our Constitution does recognize a person's right to privacy. We have stated that a right to bodily integrity and autonomy exists within the right to privacy. In re Brown , 478 So.2d at 10398-40.

¶27. Article 3, § 32 of the Mississippi Constitution mirrors the Ninth Amendment of the United States Constitution. Article 3, § 32 reads: "The enumeration of rights in this constitution shall not be construed to deny and impair others retained by, and inherent in, the people." The Federal Constitution's failure to explicitly state a right to an abortion has not prevented the United States Supreme Court from perceiving certain "penumbras" from which a protection of privacy is derived. "This right of privacy... is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Roe , 410 U.S. at 153. Both the Federal and Mississippi Constitutions protect a person's right of privacy to control his/her own person. As this Court stated in Young v. Jackson , 572 So.2d 378 (Miss. 1990), "It requires little awareness of personal prejudice and human nature to know that, generally speaking, no aspects of life is [sic] more personal and private than those having to do with one's... reproductive system." Young , 572 So.2d at 382.

¶28. Chancellor Wise determined that Article 3, § 32 of the Mississippi Constitution provided for the right to an abortion. "The positive law of this state affords each person a substantial zone of freedom which, at his election, he may keep private. The zone surrounds person and place and without his consent may not be invaded by other persons, or by the state." Young , 572 So.2d at 381 (internal citations omitted). The right to privacy, whether founded in common law or natural law, is constitutionally guaranteed under ...


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